About the author(s):
Konstantina Karagkouni works as a Research Associate for the Beyond Compliance Consortium, based at Utrecht University. She holds an LL.M. in Public International Law, specializing in Security and Conflict from Utrecht University, an LL.M. in Public International Law, and an LL.B. in Law, both awarded by the National and Kapodistrian University of Athens. Prior to joining the Consortium, Konstantina interned at the T.M.C. Asser Institute, worked as a legal assistant for an NGO in Samos, Greece, specializing in pushbacks and enforced disappearances, and served as a student assistant on the project ‘Civilian Agency, Armed Groups, and International Law’ under the leadership of Professor Katharine Fortin. Konstantina is also an EU-qualified lawyer, admitted to the Piraeus Bar Association, and has worked in private practice in Greece.
This post forms part of phase two of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, hosted by the Armed Groups and International Law blog. The introductory post can be found here. The symposium invites reflection on the conceptualisation of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies that can effectively address both civilian harm and humanitarian need.
Introduction
“Is it not incongruous to impose debilitating sanctions with one hand while with the other bringing in humanitarian aid to restore supplies vital to the population’s survival?”
Cornelio Sommaruga, “Strengthening the Coordination of Emergency Humanitarian Assistance: Humanitarian Policy and Operational Activities,” Address at the United Nations General Assembly, 49th session, November 23, 1994, in International Review of the Red Cross, no. 304 (February 28, 1995).
States, NGOs, humanitarians and international organisations are able to count civilian deaths in armed conflicts, yet there appears to be no equivalent accounting available to victims of a war waged via exchange rates, inflation and interest rates – in other words the victims of sanctions. A common misconception persists that harm can only be caused by or stem from armed confrontations between states and armed groups or armed groups among themselves, relegating to a secondary position those inflicted by policies that do not appear to violate international law. Economic sanctions are typically presented as an alternative to the use of force or military intervention, a framing that has contributed to their massive proliferation. Yet, while warfare is largely regulated by IHL, it has always been ambiguous whether IHL regulates sanctions directly; rather it has been proposed that some rules of IHL should apply by analogy to sanctions to prevent human suffering (see here, here and here).
Since the adoption of the United Nations Charter (UNC), the use of economic sanctions has been a source of heated debate between the Global North and Global South. Many states from the Global South argue that economic sanctions should qualify as a use of force under Article 2(4) of the UNC, which prohibits the threat or use of force. Some scholars also contend that, under certain circumstances, unilateral sanctions may violate the principle of non-intervention (see here and here). Sanctions are generally legitimised by those who impose them – with little scrutiny of their underlying motives– on the grounds that they constitute an effective policy tool to change fighting parties’ behaviour, thereby sparing civilians from the ravages of armed conflict. States imposing sanctions seem to be working on an assumption that they will minimise civilian harm, yet in practice they end up causing it, as they often impede humanitarian operations and have an adverse impact on the ability of civilians to access goods and services (p. 5).
The rise in the use of unilateral sanctions in recent years has brought a concomitant rise in concern about their harm on innocent civilian populations experiencing them, especially on vulnerable groups and on their long-term impacts. Corresponding to growing concerns, in September 2024 the UN Special Rapporteur on unilateral coercive measures and human rights, launched an online tool aimed at monitoring and assessing the humanitarian impact of unilateral sanctions, as existing efforts to evaluate such impacts remain fragmented (Report of the Special Rapporteur, paras. 11-16). Research has shown that while many of the harms connected to sanctions take an immediate and quite easily identifiable form (such as limited access to medical supplies, food, inflation on consumable items), others hold potential to reverberate through the generations.
If we accept that harm by sanctions can take various forms, as it will be explored below, we must also consider the possibility that such harm may extend beyond the immediate and visible effects. In particular, we need to explore the different ways in which individuals may be affected by sanctions and whether these effects might contribute to intergenerational harm. This makes it important to explore whether and to what extent sanctions can cause intergenerational harm and what is international law’s stance towards this type of harm. The blog will proceed in three parts. First, it will examine different types of harm sanctions cause. Secondly, it will present various arguments through which international legal scholarship has attempted to capture this harm. Lastly, it will address the challenges in capturing intergenerational harm under international law.
The Harm of ‘No-Harm’
In 1990, the UNSC imposed comprehensive sanctions on Iraq in an attempt to pressure its withdrawal from Kuwait following its invasion in August 1990, to eliminate weapons of mass destruction and to prevent any further aggression. These UN sanctions are said to have created a “near-apocalyptic” situation leading to the massive collapse of the state’s welfare systems (p. 315) and contributing to hundreds of thousands of civilian deaths. By 1998, the country’s infant mortality rate had tripled, reaching 12%. More recently, in 2014 the US administration imposed unilateral sanctions against the Venezuelan government allegedly accusing it for gross human rights violations, corruption and other acts. These measures are argued to have resulted in widespread malnutrition, the degradation of healthcare services, and, to have significantly delayed life-saving humanitarian assistance, despite their stated goal of promoting democratisation and supporting human rights.
A report from the Center for Economic and Policy Research (CEPR), based on a rigorous analysis of 32 country-specific and cross-country studies, shows that these experiences are not uncommon. It exposes the brutal realities of people living under sanction regimes – realities that are often already known but insufficiently acknowledged. These include increased hunger (p. 10-11), widening poverty gaps, reduced educational opportunities, negative impacts on physical health (including decrease in life expectancy) (p. 26, 27), and substantial barriers to accessing medical supplies and medication despite existing humanitarian exceptions.
There seems little doubt that economic sanctions severely impact the mental health and well-being of affected populations. They exacerbate stressful conditions, intensifying anxiety, depression and other mental health disorders, which in turn contribute to premature deaths. Data from the World Health Organisation (WHO) shows that during the sanctions period in Iran (2011-2014), deaths due to self-harm and interpersonal violence increased almost one percent. Notably, self-harm related deaths declined in 2016, a year after sanctions were lifted. Therefore, the full extent of harm caused by sanctions is difficult to quantify, as sanctions are often controversial due to concerns about their effectiveness, unintended consequences and potential impact on human rights.
Intergenerational Trauma and Sanctions
If we accept that sanctions can cause significant loss and trauma, we must also acknowledge that such trauma may propagate adverse consequences for future generations. As Holmes notes, mental harm does not adhere to temporal limitations as its emergence can be delayed, surfacing post-conflict and it can also have intergenerational effects. The American Psychological Association defines trauma as an emotional response to traumatic events. Initially, this response may manifest as denial and shock, but its long-term effects can include unpredictable emotions, changes in behavioural patterns, increased interpersonal conflict and even physical symptoms like headaches and nausea. Initial trauma experienced by one group can have long-lasting implications for subsequent generations, as trauma can be passed intergenerationally. Research on the intergenerational effects of war has almost exclusively focused on European Holocaust survivors, US male Vietnam veterans suffering from PTSD and generations of refugees from wars in Asia.
Research in this area has shown that there are often two theoretical explanations given for how the aftereffects of loss and trauma can potentially propagate adverse consequences for future generations. The attachment theory asserts that unresolved trauma affects the quality of parenting and leads to secondary traumatisation in offsprings (p. 101). The second theory is the epigenetic transmission theory which asserts that when a parent is exposed to trauma, biological alterations take place which lead to the child re-experiencing that trauma as if it is their own (p. 297). Therefore, the effects of trauma are not solely emotional or behavioural, but also biological. Evidence shows that DNA can change epigenetically in response to stress, and these changes, when transmitted to future generations, can impair the brain’s ability to regulate stress-related disorders. Hackett even argues that genes can retain memory of past experiences, indicating that genetic changes can be passed on to descendants. Indigenous psychologists further emphasise that intergenerational trauma transcends physical and cognitive pathology, affecting spiritual, physical, familial and communal dimensions (p. 17-20). In the next two sections, I will evaluate the extent to which the harm caused by sanctions – and its intergenerational aspects – can be addressed by international law.
Attempts to Capture Harm Caused by Sanctions under International Law
Scholars using international law to address the harm caused by sanctions have employed various legal arguments, framing them as potential crimes against humanity, forms of collective punishment, or even as instruments of genocide. This section briefly outlines these different approaches and proposes that, if we accept that sanctions can propagate harm across generations, their impact should also be understood as potentially giving rise to intergenerational harm.
The legal question of whether the harm caused by sanctions could qualify as crimes against humanity, emerged relatively recently in the context of US sanctions against Venezuela. In February 2020, Venezuela submitted a referral to the International Criminal Court (ICC) alleging that the unilateral economic sanctions imposed by the U.S. (and other states) violate international law and constitute crimes against humanity (para. 70). Venezuela’s argument is grounded on the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, which it interprets as establishing a prohibition on unilateral economic sanctions (para. 40). Venezuela asserts that these measures constitute an attack against the entire civilian population; although ostensibly directed at specific individuals, in practice, they have severely impacted the broader civilian population by exacerbating food and medicine shortages and increased mortality rates (paras. 71, 82-84). The referral, which has drawn considerable academic criticism (see here and here), details how these effects, in Venezuela’s view, satisfy the legal definition of “crimes against humanity” under Article 7 of the Rome Statute.
Some scholars argue that sanctions may amount to collective punishment, which is per se prohibited under international humanitarian law. Although the prohibition of collective punishment is well established in the context of armed conflicts (e.g., in the Hague and Geneva Conventions – here and here-, and the ICRC Commentary to Geneva Convention IV), there is still no explicit prohibition under human rights law in times of peace, as many human rights instruments remain silent on this issue. In their analysis of the 2017 and 2019 unilateral sanctions on Venezuela by the US, Weisbrot and Sachs contend that “these sanctions would fit the definition of collective punishment of the civilian population as described in both the Geneva and Hague international conventions” (p.6). Nevertheless, they fail to substantiate their argument; they do not demonstrate the existence of an armed conflict between Venezuela and the U.S. which would be necessary for the application of the Geneva and the Hague Conventions. Secondly, despite the absence of an armed conflict, they do not address whether IHRL or any other body of law prohibits collective punishment in times of peace, leaving unanswered the question of whether the unilateral sanctions on Venezuela – which were imposed outside of an armed conflict – could constitute prohibited behaviour on the basis of their punishing effect.
In examining sanctions in over a dozen contexts, Simons vividly describes how the entire Iraqi society had become a target, under a form of ‘genocidal’ situation (p. 169-170). Although Simons does not explore whether the legal criteria for genocide under the 1948 Genocide Convention were met (the Rome Statute was not in force yet), Bisharat argues that genocidal intent can be established through direct statements —such as the May 1996 comment by then–U.S. Ambassador to the UN, Madeleine Albright)—or inferred from the context. Case law shows that context that can be taken into account in proving genocidal intent can include the scale of harm (such as the hundreds of thousands of deaths), and the systematic targeting of individuals solely based on group identity, as discussed in the ICTY’s Sikirica case. It is relevant to note that Simon’s argument on this point has not gone unchallenged. Jordon, who has extensively documented the human cost of sanctions, critiques labelling sanctions as genocide too easily. She points to the paradox that “there is no sheer quantity of human damage that is sufficient to show genocidal intent” (p. 59).
One aspect of the impact of unilateral sanctions that has been overlooked in legal scholarship is their contribution to intergenerational trauma. While the immediate negative effects of sanctions on directly affected populations have been widely discussed, it has been noted above that it is important to acknowledge that these measures can produce long-term harm that spans across generations. This raises the additional challenge of whether and how international law could provide redress to affected persons.
Challenges in Capturing Intergenerational Harm under International Law
To examine this question, I will now turn to the question of whether, and to what extent, international law – and specifically international courts and tribunals, including hybrid and regional courts – recognises the concept of ‘intergenerational harm’. It is important to clarify that the principle of ‘intergenerational equity’, which is often invoked in the context of the rights of future generation and climate change, is a distinct concept to intergenerational harm. Unlike intergenerational harm, intergenerational equity is a general principle of international law (p. 201) which addresses the moral and legal obligation incumbent on current generations to “pass on (to future generations) the natural, and cultural resources of the planet in no worse condition than received” (37-8). According to this principle, present generations should be restricted from exploiting resources to the exclusion of future generations. By contrast, intergenerational harm refers to trauma passed on between generations, often resulting from conflict, colonisation and situations of ‘toxic stress’.
There is currently limited recognition of intergenerational harm under international law. Certainly in its early case law, the ICC did not refer to the concept of ‘intergenerational harm’. Instead, it developed the categories of ‘direct’ and ‘indirect victims’. In the 2009 Lubanga Decision on ‘indirect victims’, the Court included in the category of ‘indirect’ victims relatives from the same generation as the direct victim, next generation relatives and more distant relatives, as long as they have suffered harm that has a direct causal link with the crime (para. 41). The Court established that harm suffered by a victim can affect others around them, especially the ones with whom the victim maintains a close relationship with (para. 42). In the 2017 Katanga Reparations Decision, the ICC explicitly addressed intergenerational harm for the first time. Although, the Chamber rejected the claims made by 5 applicants that they were victims of transgenerational harm due to questions of causality (para 176), the Court acknowledged that “(a)pplicants are, in all likelihood, suffering from transgenerational psychological harm” (para. 134).
In 2021, the ICC seemed more prepared and open to deal with a similar situation in the Ntaganda Reparation Decision, where it found that the damage caused, transcended not one, but two generations who were unborn when the crimes were committed. Specifically, the Trial Chamber declared that “children of the direct victims may have suffered transgenerational trauma regardless of the date when they were born” and that “direct victims (..) may have also suffered transgenerational harm as indirect victims” (para.182). Thus, the category of ‘indirect victims’ would include family members of direct victims, even those who were not born at the time of the commission of the crime, as long as they are able to prove transgenerational harm (paras. 36, 73, 183(d)(vi)).
The fact that neither the earlier International Criminal Tribunal for the Former Yugoslavia (ICTY), nor the International Criminal Tribunal for Rwanda (ICTR) referred to the concept of indirect victims or intergenerational harm can be partly explained because these courts could not directly provide reparations. Similarly, the jurisprudence of the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Specialized Chambers of Kosovo (KSC) does not engage with these concepts. By contrast, the Special Tribunal for Lebanon (STL), in the Prosecutor v. Ayyash et. al, defined the victim as “a natural person who has suffered physical, material, or mental harm as a direct result of an attack within the Tribunal’s jurisdiction”. Yet it emphasised that this definition encompasses both ‘direct’ and ‘indirect’ victims who have suffered harm as a result of the attack (para. 794). The STL conceptualised victims in a broad way, as it emphasised that the participating victims in this case are among others the “relatives of those who died” (para. 796), without specifying from which generation, and that acts of terrorism affect primary, secondary and vicarious victims (para. 800-1). Yet, it did not mention the intergenerational consequences of the harm suffered.
Although the Inter-American Court of Human Rights (IACtHR) jurisprudence has never explicitly invoked the term ‘intergenerational harm’, it has, in several instances, taken into account the harm suffered by indirect victims. In his Separate Opinion in Ituango Massacres v. Colombia (2006), Judge Sergio García Ramírez observed that an indirect victim does not experience harm “in the same way (..)immediately, directly and deliberately” – but rather has their own rights affected as a result of the harm inflicted on the direct victim (para. 11). This seems wide enough to capture the harm experienced by a child, as a result of the harm inflicted on a parent. In the Gudiel Alvarez et al. (Military Diary) v. Guatemala case (2012), the IACtHR went further by recognising harm to family members not yet born at the time of the violations. The case concerned the enforced disappearance of 26 individuals (p. 13). The Court held that “(..)two of the children of those who disappeared were not yet born when their fathers were disappeared (..) they also suffered a violation of their mental and moral integrity, because of the fact that they had to live in an environment of suffering and uncertainty” (para. 287). The Court also acknowledged that harm extended to nieces, nephews and grandchildren of the disappeared victims, who were born when the disappearance took place (para. 288). Finally, in the Rocha Hernández et al. v. El Salvador (2014), the IACtHR cited the expert psychological testimony on the ‘transgenerational consequences of enforced disappearances’ (para. 114), without discussing whether the victims were suffering from intergenerational harm, leaving unanswered the question whether harm could be transmitted across generations.
The European Court of Human Rights (ECtHR) primarily distinguishes between ‘direct’ and ‘indirect’ victims. The latter are defined as those “to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end” (Vallianatos and others v. Greece, para. 47). The standing of these individuals as indirect victims “depend on the existence of special factors which gives the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation” (Çakici v Turkey, 1999, para 98). Yet, when faced with alleged violations that are not closely linked to a death or disappearance the Court has adopted a more restrictive approach towards indirect victims and has reiterated that some rights are “non-transferable” to other relatives. In any case, the Court has not yet addressed trauma experienced or transmitted across generations, nor has it recognised intergenerational harm as such. Rather the focus of the Court in some instances (e.g. see here and here) seems to have rested on preventing harm or heavier burdens for future generations, rather than addressing any psychological or emotional injuries carried across generations.
Conclusions
While today it is increasingly questioned whether sanctions are truly effective as a compliance mechanism, there is also increasing attention given to the harm they cause, also across generations. There has also been increased attention to the question of whether international law can address this harm. In addressing this debate, this post has shown that although there is increasing recognition that sanctions can cause serious harm that is experienced across generations, the question of whether redress for this harm can be achieved via legal means remains contested. This is principally because there is uncertainty regarding whether and how international law is able to address harm caused by sanctions in the first place. Yet even if it were able to, this post has shown that there are also serious question marks about the extent to which international law is able to address the harm caused to future generations. Indeed, it has shown that international law does not yet fully recognise intergenerational harm, though the concept has begun to emerge indirectly – primarily through the recognition of indirect victims in reparations decisions. Still, intergenerational harm remains largely relegated to a clause within such orders, rather than forming part of a broader legal framework.
In the light of recent efforts (also by BCC members) to problematise mainstream understandings of harm – for example by acknowledging spiritual harm and re-prioritise the mental health impacts of war – this post argues that it is also important to acknowledge that harm can have long-lasting impacts across generations, which can only be addressed through a holistic and inclusive interpretation of (civilian) harm. In line with the Beyond Compliance Consortium’s conceptualisation, it is crucial to identify what international law can do to address harm and what (currently) lies beyond its scope.